Regarding the 1861 case of Ex Parte Merryman, Mike Ramsey recently quoted Seth Barrett Tillman’s opinion that there is no evidence proving that, “President Lincoln believed he could legally authorize his subordinates to ignore or defy judicial orders, much less establish that Lincoln did so either in Merryman or in relation to any other civil war case.”
On the contrary, there is plenty of such evidence, which I will get to in a moment. But first let’s go back to Lincoln’s first inaugural address in March of 1861. A man very careful with his words, Lincoln said: “I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit….” He obviously did not endorse the position that constitutional questions are to be ultimately decided by the Supreme Court, nor did he actually affirm that such decisions must be binding even upon the parties (he merely declined to deny it). Only a few weeks would pass before Lincoln would have to confront these very same issues.
In May of 1861, Chief Justice Taney issued a writ of habeas corpus ordering General Cadwalader to let John Merryman appear in court. When Cadwalader refused, Taney issued another writ, called a writ of body attachment, to bring Cadwalader himself into court. Again, Cadwalader refused. Cadwalader’s refusal lasted not for hours or days or weeks, but throughout the entire month of June. And that refusal was explicitly authorized by Abraham Lincoln, who later explained his position to the reconvening Congress on July 4: “it can not be believed the framers of the instrument intended that in every case the danger should run its course until Congress could be called together, the very assembling of which might be prevented, as was intended in this case, by the rebellion.” Now that Congress had assembled, Lincoln gave the judiciary access to Merryman on July 10, on which date Merryman was indicted.
There is plentiful evidence that Cadwalader’s refusal to comply with Taney’s orders was authorized by Lincoln, even putting aside Lincoln’s speech of July 4. For example, on May 28, Cadwalader received an order from the Assistant Adjutant General at Army headquarters acknowledging the writ of habeas corpus for Merryman, and adding: “The general-in-chief [Winfield Scott] directs me to say under authority conferred upon him by the President of the United States and fully transferred to you that you will hold in secure confinement” the prisoner John Merryman. Thus, there is no doubt that President Lincoln believed he could legally authorize his subordinates to ignore or defy judicial orders, in the Merryman case.
And, the Merryman case was not unique in this regard. For another instance of Lincoln ordering non-enforcement of a direct court order, see the less famous case of United States ex rel. Murphy v. Porter. According to an October 22, 1861 entry in the diary of Lincoln’s secretary, John Hay, a Deputy U.S. Marshal asked Hay and Secretary of State William Seward what should be done about a court order directing General Andrew Porter to appear in court. Seward replied: “The President … forbids you to serve any process upon any officer here.” Hay then confirmed that those were “Precisely his words.”
None of this should be surprising. To borrow some language from Alexander Hamilton, if there should happen to be an irreconcilable variance between the Constitution and a court order, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the court order, the intention of the people to the intention of their agents. That presidents always show great deference to court orders, and almost always give them efficacy, does not mean that they must. This is an essential element of separation of powers, and of checks and balances, and if judicial supremacy runs amok in the United States it may well be because these checks and balances have atrophied, and have become stigmatized.
Posted at 9:10 AM